New trial ordered for judge’s failure to instruct jury in alleged plot to kidnap and extort lawyers

In a case about an alleged plot to kidnap and extort lawyers, a man will get a new trial after the Ontario Court of Appeal found that the trial judge should have instructed the jury that the consistency between a witness’ testimony and his prior statement to police did not enhance his credibility.

In R. v. Freedland, 2023 ONCA 386, Robert Freedland appealed his conviction for counselling extortion. He was accused of trying to enlist the help of a man named Garvin James in a plot to kidnap several lawyers that Freedland said had defrauded him. The Crown’s theory was that Freedland planned to kidnap the lawyers, take them to a farm, record coerced confessions, and use the recordings against them as blackmail.

The court released the decision on May 30. The court’s panel consisted of Justices David Doherty, Alison Harvison Young, and Julie Thorburn, and Justice Doherty wrote the reasons.

“This case emphasizes the difficulty the courts have when conducting a case where the accused is largely self-represented,” says Anthony Moustacalis, who acted for the appellant, Robert Freedland. “The experienced trial judge flagged the issue early on, gave a brief warning to the jury at the time, and said he would re-visit it in his charge but did not.”

At trial, Freedland could only retain counsel for the cross-examination, was without a lawyer at the end of the trial and could not voice an objection when the judge failed to revisit the issue that the consistency in the witness’ statements did not bolster the witness’ credibility, he says.

“As a result, the system is now looking at potentially re-prosecuting a case that was heard in early 2019 involving events from 2016 to 2017, when there is already a significant backlog at the Toronto Superior Court.”

James, the witness, had been arrested on an unrelated charge and had taken the opportunity to provide statements to the police detailing Freedland’s alleged plot. James said that he was only pretending to go along with the plan and would eventually notify the authorities.

James then testified against Freedland at trial, after which the Crown withdrew his charges.

A jury convicted Freedland on the counselling extortion charge but acquitted him on conspiracy charges. The verdicts demonstrated that the jury believed that Freedland tried to get James to participate in the crime but not that James had agreed to do it, which was consistent with James’ evidence, said Doherty.

The judge said that the Crown’s case relied on the jury believing James’ account that Freedland had solicited his assistance in the plot.

During the trial, the officer who arrested James and to whom James had told of the kidnap and extortion plot gave a detailed description of what James had told him and a summary of James’ videotaped statement, which had been recorded the day after the arrest.

The appeal turned on the issue that in his final instructions, the trial judge had not instructed the jury that they could only make limited use of the fact that the officer’s recount of James’ statements was consistent with James’ testimony. In the Supreme Court’s ruling in R. v. Ellard, SCC 27, the court noted that when prior consistent statements are admitted into evidence, a limiting instruction will “almost always be required.” The point of the instruction, said the court, is to advise the jury that “consistency is not the same as accuracy.”  

But a trial judge’s failure to give a limiting instruction in these circumstances is not necessarily fatal. The omission will not always constitute a reversible error where the prior consistent statements played only a minor role in the overall evidence. At other times, the failure to instruct will be an error in law, but the error will not have caused a substantial wrong or miscarriage of justice. In the Freedland appeal, the Crown made both arguments.

But the fact that the prior consistent statements “figured prominently” in the crown’s case and that James’ credibility was of “central importance” meant that a proper limiting instruction was legally necessary, Justices David Doherty wrote in the appeal court decision. To the appeal court, the absence of the instruction was a “misdirection constituting an error in law.”